How to Fix Legislative Districting in Pennsylvania (Without Making Things Worse)

Marc Stier |

We at the PBPC have been very critical of the effort to pass SB22, a constitutional amendment to change the way legislative districts for both Congressional and state legislative races are drawn, as it was recently amended in the state government committee. But that’s not because we don’t favor an independent redistricting commission that would create fair, nonpartisan districts.

We are very much in favor of a nonpartisan independent redistricting commission. There are very good, strategic options for securing a constitutional amendment, or the best parts of the current SB22, through legislation this year or very soon without supporting SB22 as it stands now. But we object to a political strategy that runs the very real risk of giving us another decade or more of gerrymandered districts, especially one that allows the Republican majority to claim credit for creating a better redistricting process when they have, in fact, undermined it. 

What’s wrong with SB 22 as it currently stands

Make no mistake, that is exactly what the current SB22 / Folmer plan is. Proponents of passing SB22 in it is current form have not really disputed our analysis. They do not deny that the Folmer plan has major loopholes that would allow the majority party of the General Assembly to have a dominant role in choosing both the majority and minority members of the commission. They do not deny that the Republican members of the commission alone could block the commission from reaching an agreement, enabling the majority party in the General Assembly, with the connivance of some minority members, to engage in partisan redistricting. They do not deny that there is no process to ensure that new districts actually are drawn in time for an election.

Instead they keep saying that we need to have faith that the commissioners would act fairly. And that’s the same response Senator Folmer gave the other day to questions about his proposal: “But, if people don’t trust legislators to help in the process, it’s confusing as to why they want a totally independent commission to draw maps to elect people they don’t trust.”

When I hear people say we should trust legislators with the degree of influence on the redistricting commission that the Folmer plan gives them, or trust commissioners chosen by the General Assembly to resist political pressure, I wonder what country they’re living in.

The country I live in is one where the partisan divide is larger than at any time since before the Civil War. It is one in which a Republican Congress stole a Supreme Court seat from President Obama and is now using that seat to overturn decades of precedent in ways that will entrench them in power. It is one where President Trump appears willing to bend or break every rule, precedent or law to attain his ends.

In the country we live in today, we can’t simply trust that people will do the right thing. We have to assume that they will do what the rules allow — and if they can get away with it, what the rules do not allow — to attain their partisan and individual self-interest.

That isn’t an expression of cynicism. It’s an expression of realism, the same realism that motivated the Founders to create a system of government with checks and balances.

It is naïve and dangerous to simply trust legislators or their choice of redistricting commission members to do the right thing.

We shouldn’t trust Democrats any more than Republicans. But right now, Republicans control the General Assembly and are likely to do so for some time in the future. And that’s why we and many experienced and savvy advocacy groups aren’t willing to trust a redistricting process that will empower what is very likely to be a Republican-controlled General Assembly, elected under the current Republican gerrymandered districts, to take control over the redistricting process for another decade or more. And that is what the current version of SB22 is.

How to move forward

What we are willing to do, however, is to use this moment when the Republicans have lost control over the redistricting process under the status quo and have an incentive to create a fair process to push them to do exactly that.

Our first task is to either amend SB22 to restore the original version of the bill or to explain to the public that it is an unsatisfactory, partisan measure that deserves to be defeated. There is no strategic reason to compromise with Republicans determined to gut a very good redistricting bill. If the Senate Republicans will not return SB22 to its original form, we should oppose it. And once we defeat it, we should move on to one or more of the following three approaches:

1. HB2402 is the new version of HB722, a bill that Representative Daryl Metcalfe gutted in committee. It is a good plan that we support. Advocacy groups working on this issue say that there is a good chance to push it, or Representative Reed’s new proposal, which we have not yet analyzed, through the House. We are willing to work to do that. And when we do, we can then generate pressure on the Senate to pass it as well. We don’t need SB22 in its current, mutilated form to pass the Senate to do that.

If that doesn’t work, all is not lost. There are other ways to move forward.

2. There are some good features of the current version of SB 22. It sets new standards for the way redistricting is carried out by requiring both minimum splits in counties when drawing district lines and public meetings and a transparent process for deliberation on the part of the commission.

We do not think these requirements are enough, for reasons we have discussed. But we agree that they should be part of the redistricting process in Pennsylvania.

So, let’s put these rules into place for redistricting through legislation, not a constitutional amendment. The General Assembly could put all these rules into effect for the existing state legislative redistricting commission. And it could also establish a bipartisan committee of the General Assembly that would be required to follow this process to present a congressional district plan to the whole General Assembly and the governor.

In other words, no constitutional amendment is necessary to institute the best parts of SB22 as it now stands. This legislative approach to fixing our districting process does not require a constitutional amendment like the Folmer plan that creates a sham independent commission and undermines the existing checks and balances on the redistricting process.

3. We can pass a constitutional amendment in the next few years. While, as a matter of practice, redistricting is done every ten years, there is precedent for mid-decade redistricting. Texas drew new congressional district lines in 2005 after drawing lines in 2001 and after an election changed party control over its legislature. While controversial, that action was upheld by the U.S. Supreme Court. And, of course, the Pennsylvania Supreme Court, acting under our state constitution, created new congressional district lines this year.

We would be very concerned if a mid-decade redistricting were done in Pennsylvania simply because partisan control of the General Assembly changed. And we would recommend that any amendment to the PA Constitution ban mid-decade redistricting to prevent partisan shenanigans, except when provisions of the Constitution that regulate districting are violated. However, it is fair and reasonable to require that district lines be redrawn in the election subsequent to the adoption of a new, fair process of redistricting. Of course, this one-time, mid-decade redrawing of lines for congressional and state legislative districts would be carried out only if mandated by a constitutional amendment enacted in two different general assemblies and approved by the voters. But if that happens, it makes sense for the process to go into effect as soon as possible rather than at the turn of the next decade.

So, in its current form, if SB22 goes down to defeat in the Senate this week, all is not lost. There are at least three ways to move forward. And we at PBPC are certainly willing to work to do so.

Why this is so important

PBPC has long supported redistricting reform. But we mainly work on budget and related policy issues. We fight for raising the minimum wage. We fight for fair and adequate funding for our schools at all levels pre-k, K-12, college, and for workforce training. We fight for expanding the social safety net. We fight for more protection for our environment. And we fight for fair taxation to accomplish these goals.

Groups like Fair Districts PA, along with Common Cause and other organizations, have done a wonderful job mobilizing people to care about the redistricting issue. But when we saw them endorse a badly-conceived version of a constitutional amendment that threatens what we and so many others are working for in Harrisburg, we had to speak up. (And we are grateful that Common Cause now calls for SB22 as currently constituted to be defeated.)

Our state has suffered for two decades because of congressional and state legislative gerrymandering. We see that suffering every day in the kids who go to inadequate schools, in the highest student loan debt of any state in the country, in the air and water threatened by unregulated fracking, in the million plus Pennsylvania workers who are stuck working for an unconscionably low minimum wage. While we are happy to support a fair districting proposal that remakes the current system, we are not willing to support a constitutional amendment that risks empowering our General Assembly (which was elected under gerrymandered district lines) to draw unfair lines for another decade or more, again setting back progress on all the other issues we and so many others care about.

We all need to honestly face the political world we live in now and reject a naïve and potentially disastrous strategy — one that threatens the work that so many of us are doing to make Pennsylvanian a better place for us all.